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HomeMy WebLinkAbout6B2 First Amendment to Development Agreement (Miami Hills)1 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this “First Amendment”) is made on January 12, 2023, by and between the South Bend Redevelopment Commission, the governing body of the City of South Bend Department of Redevelopment (the “Commission”), and Miami Hills MF II, LLC (the “Developer”) (each a “Party,” and collectively the “Parties”). RECITALS A. The Commission and the Developer entered into a Development Agreement dated effective February 10, 2022 (the “Development Agreement”), pertaining to certain local public improvements ("LPI") to renovate, rehabilitate, and activate the Developer Property, which is located in the South Side Development Area (the "Project"). B. As set forth in the Development Agreement, the Commission agreed to expend no more than One Million Dollars ($1,000,000.00) of tax increment finance revenues to complete the LPI in support of Developer’s Project (the Funding Amount”). C. In accordance with the terms of the Development Agreement, the City of South Bend, Indiana Board of Public Works (the “Board”), as the Commission’s agent, entered into a professional services agreement with Forum Architects for $70,000.00 to produce plans and specifications for public bid, and on June 28, 2022, the Board attempted to open bids for the Project; however, no bids were received. D. Because no bids were received for the Project, in accordance with City policy at the time, an open market procurement process was then begun by the Board, and H&H Renovations, Inc. of Atlanta, Georgia, (the “Contractor”) provided the most responsive and cost-effective open market bid at $1,584,305.00. E. The Contractor’s bid to complete the Project exceeds the remaining Funding Amount set forth in the Development Agreement, and needs to be increased. F. In consideration of the Commission’s willingness to approve an increase to the Funding Amount, the Developer agrees to reimburse the City for the amount that exceeds the remaining Funding Amount, as set forth in this First Amendment. G. Because of the unforeseeable issues arising from the bid process, the Project has been delayed, and the parties also desire to extend the substantial completion date of the Project in order to allow sufficient time to complete the Local Public Improvements and the Project. NOW, THEREFORE, in consideration of the mutual promises and obligations stated in the Development Agreement and this First Amendment, the adequacy of which is hereby acknowledged, the Parties agree as follows: 1. Section 1.3 shall be deleted in its entirety and replaced with the following: 2 1.3 Funding Amount. “Funding Amount” means an amount not to exceed One Million Five Hundred Eighty-Four Thousand Three Hundred and Five Dollars ($1,584,305.00) of tax increment finance revenues to be used for paying the costs associated with the construction, equipping, inspection, and delivery of the Local Public Improvements. 2. The phrase “the date that is seventeen (17) months after the Effective Date of this Agreement” shall be deleted from Section 4.5 and replaced with the phrase “December 31, 2023”. 3. The Developer hereby expressly reaffirms its obligation under Section 5.2(d) of the Development Agreement to pay all costs of completing the LPI, including any necessary change orders to the LPI Contract, in excess of the Funding Amount, as such amount is hereby amended. The Developer hereby acknowledges that the Developer or the Developer’s designee may inspect the LPI upon completion and hereby expressly reaffirms its obligation under Section 5.2(d) of the Development Agreement to pay all costs of inspecting the LPI. 4. Notwithstanding any provision to the contrary, the Commission’s obligations to complete the LPI will be satisfied in full upon the completion of the LPI Contract, irrespective of the final amount of the LPI Contract. 5. As an inducement for the Commission’s increase of the Funding Amount under this First Amendment and as a further assurance to the Commission pursuant to Section 9.13 of the Development Agreement, the Developer shall submit funds to the Commission through staff of the Department of Community Investment in the amount of Six Hundred Fifty-Four Thousand Three Hundred and Five Dollars ($654,305.00), which funds will be applied at an appropriate time to the LPI Contract in accordance with the Board’s ordinary payment practices and applicable laws. 6. The Developer hereby expressly reaffirms its obligations under the Development Agreement, and, unless expressly modified by this First Amendment, the terms and provisions of the Development Agreement remain in full force and effect. 7. Capitalized terms used in this First Amendment will have the meanings set forth in the Development Agreement unless otherwise stated herein. 8. The recitals set forth above are hereby incorporated into the operative provisions of this First Amendment. 9. This First Amendment will be governed and construed in accordance with the laws of the State of Indiana. 10. This First Amendment may be executed in separate counterparts, each of which when so executed shall be an original, but all of which together shall constitute one and the same instrument. Any electronically transmitted version of a manually executed original shall be deemed a manually executed original. Signature Page Follows 3 IN WITNESS WHEREOF, the Parties hereby execute this First Amendment to Development Agreement as of the first date stated above. SOUTH BEND REDEVELOPMENT COMMISSION By:____________________________________ Marcia I. Jones, President ATTEST: By:____________________________________ Troy D. Warner, Secretary MIAMI HILLS MF II, LLC a Delaware limited liability company By: _____________________________________ Gregory B. Jones, Chief Investment Officer IN WITNESS WHEREOF, the Parties hereby execute this Agreement to be effective as of the Effective Date stated above. SOUTH BEND REDEVELOPMENT COMMISSION ______________________________ Marcia I. Jones, President ATTEST: ______________________________ Troy Warner, Secretary MIAMI HILLS MF II LLC, a Delaware limited liability company By: Authorized Signatory